Colonel Hogan
Madness
- Joined
- Sep 16, 2005
- Posts
- 18,372
The premise of the thread title is aptly articulated by a post from JAMESBJOHNSON in another thread earlier today, to wit:
The argument that the validity of a law or judicial order is dependent on a handful of those who might openly defy it is as vile as the scofflaws themselves, be they common criminals or Presidents or other elected officials, down to the lowliest of county clerks.
Be that as it may, JamesB is once again in error – at least with regard to Jefferson’s precise attitude toward the Supreme Court’s unanimous decision in Marbury. Here is a recollection of the events which Jefferson wrote some 27 years after the fact in 1830, though he had expressed his displeasure with the ruling on several other occasions far earlier:
So Jefferson was a “Tenther” and a Constitutional “originalist,” but he was no fan of the principle of wide scale judicial review endorsed by Marbury.
But there is a nagging problem regarding both positions with respect to the principle of judicial review.
Among the powers which the 10th Amendment would necessarily concede as being “delegated…by the Constitution” to the United States and “prohibited by it” to the States is embodied in the Supremacy Clause of Article Six which states in part “This Constitution, and the Laws of the United States … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.“
I believe that language speaks with unmistakable clarity with respect to 10th Amendment powers “reserved to the States respectively, or to the people” vis-à-vis the Constitution and/or the U. S. Congress.
What neither the 10th Amendment nor the Supremacy Clause does, however, is provide direction on how to resolve potential legal conflicts arising from federal legislation passed by Congress when that legislation, or the actions of government officials, are arguably in violation of the delegated powers, prohibitions and restrictions contained in the Constitution. It is no help to assert that that which is not prohibited is legislatively allowed – especially with respect to a federal legislature RESTRICTED TO a finite list of enumerated powers.
That legal complexity is only compounded if the case before the bar involves deprivation of a so-called “natural right,” almost universally recognized to exist, but without any existing affirmative statutory authority. The staunchest Federalists arguing against inclusion of the Bill of Rights in the Constitution acknowledged the existence of “natural rights,” the exhaustive scope of which, defied specific enumeration within that supplementary document.
The question then is left hanging: How would a Congressional legislative infringement of a natural right be adjudicated, if not by a federal court of law, and, how would said court reference a given ruling in favor of a petitioner, but by speculative language not in any way directly supported by (obviously) absent codification? Answer: In a manner not at all seemingly dissimilar to the speculative judicial authority alleged by Marshall in Marbury.
But is it really speculative?
In fact, the argument for judicial review power by the judiciary is far stronger than that for “natural rights” enjoyed by “the people” (or at least until so referenced by the Ninth and 10th Amendments). At least Marshall had the Constitutional language of Article III which defined and divided the Supreme Court’s authority in terms of original and appellate jurisdiction and the scope of that authority in both instances. In its most common exercise of appellate jurisdiction, the Supreme Court’s Constitutional authority is unarguable: “…the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Here we have language that produces the OPPOSITE effect of that in Article I. Jurisdiction “as to Law and Fact” which is NOT legislatively prohibited, excepted or regulated by Congress IS, quite pointedly, Constitutionally proscribed.
And in response to the oh-so-frequent protest that judicial review is a power nowhere granted by or within the Constitution, we simply refer BACK to that Article III language and cite the LACK of Congressional “EXCEPTION” to judicial review as well as pose the unanswered question of what “jurisdiction as to Law” means, if in fact, it is not blindingly synonymous with Marshall’s uncompromising declaration that “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” There is really no better description as to what "jurisdiction as to LAW" could reasonably mean.
Nowhere have I seen this analysis of Article III language with respect to Marbury directly undertaken. I would be obliged, but amazed, if anyone here can provide a link to such substantive discussion.
In closing, reference must be made to Jefferson’s advocacy for reliance upon “originalism” as a remedy for questions of Constitutional construction. As Justice Antonin Scalia has said, “Originalism isn’t perfect. But it beats the other alternatives.”
But it is also not dispositive. It does not complete a sound legal analysis. It only appropriately begins it. Jefferson also apparently believed that hours, if not days, of colloquial oral debate of that period would somehow transcend the subsequent decades upon decades, and its full context be accurately communicated by the written transcript that recorded it. Apparently, he gave little thought to the “original intent” of legislators whose views might have been shaped by the unrecorded discussions in the cloakrooms and offices of the Capitol, and whether the full documented record would survive to the succeeding generations which might require it.
But by Jefferson’s own standards, the framer’s attitude toward judicial review was mixed. As many knowledgeable scholars favored it, as did those who were opposed. And by Jefferson’s own admission as noted above, by 1830 the consensus was that it was “settled law.”
In any event, his criticism that Marshall’s ruling was unnecessary dicta is not without foundation. A simple ruling noting a lack of the Court’s jurisdiction to issue the sought after mandamus would have been sufficient. It would also be preferable if "what the law IS" did not change with unseemly frequency or was dependent upon the judicial philosophy of the members of the Supreme Court. But the substance of Marbury remains above reproach. Though arguably premature in 1803, that substantive ruling would have ultimately proved necessary and inevitable.
And it remains so today, as is its status as “settled law.”
The argument that the validity of a law or judicial order is dependent on a handful of those who might openly defy it is as vile as the scofflaws themselves, be they common criminals or Presidents or other elected officials, down to the lowliest of county clerks.
Be that as it may, JamesB is once again in error – at least with regard to Jefferson’s precise attitude toward the Supreme Court’s unanimous decision in Marbury. Here is a recollection of the events which Jefferson wrote some 27 years after the fact in 1830, though he had expressed his displeasure with the ruling on several other occasions far earlier:
So Jefferson was a “Tenther” and a Constitutional “originalist,” but he was no fan of the principle of wide scale judicial review endorsed by Marbury.
But there is a nagging problem regarding both positions with respect to the principle of judicial review.
Among the powers which the 10th Amendment would necessarily concede as being “delegated…by the Constitution” to the United States and “prohibited by it” to the States is embodied in the Supremacy Clause of Article Six which states in part “This Constitution, and the Laws of the United States … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.“
I believe that language speaks with unmistakable clarity with respect to 10th Amendment powers “reserved to the States respectively, or to the people” vis-à-vis the Constitution and/or the U. S. Congress.
What neither the 10th Amendment nor the Supremacy Clause does, however, is provide direction on how to resolve potential legal conflicts arising from federal legislation passed by Congress when that legislation, or the actions of government officials, are arguably in violation of the delegated powers, prohibitions and restrictions contained in the Constitution. It is no help to assert that that which is not prohibited is legislatively allowed – especially with respect to a federal legislature RESTRICTED TO a finite list of enumerated powers.
That legal complexity is only compounded if the case before the bar involves deprivation of a so-called “natural right,” almost universally recognized to exist, but without any existing affirmative statutory authority. The staunchest Federalists arguing against inclusion of the Bill of Rights in the Constitution acknowledged the existence of “natural rights,” the exhaustive scope of which, defied specific enumeration within that supplementary document.
The question then is left hanging: How would a Congressional legislative infringement of a natural right be adjudicated, if not by a federal court of law, and, how would said court reference a given ruling in favor of a petitioner, but by speculative language not in any way directly supported by (obviously) absent codification? Answer: In a manner not at all seemingly dissimilar to the speculative judicial authority alleged by Marshall in Marbury.
But is it really speculative?
In fact, the argument for judicial review power by the judiciary is far stronger than that for “natural rights” enjoyed by “the people” (or at least until so referenced by the Ninth and 10th Amendments). At least Marshall had the Constitutional language of Article III which defined and divided the Supreme Court’s authority in terms of original and appellate jurisdiction and the scope of that authority in both instances. In its most common exercise of appellate jurisdiction, the Supreme Court’s Constitutional authority is unarguable: “…the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Here we have language that produces the OPPOSITE effect of that in Article I. Jurisdiction “as to Law and Fact” which is NOT legislatively prohibited, excepted or regulated by Congress IS, quite pointedly, Constitutionally proscribed.
And in response to the oh-so-frequent protest that judicial review is a power nowhere granted by or within the Constitution, we simply refer BACK to that Article III language and cite the LACK of Congressional “EXCEPTION” to judicial review as well as pose the unanswered question of what “jurisdiction as to Law” means, if in fact, it is not blindingly synonymous with Marshall’s uncompromising declaration that “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” There is really no better description as to what "jurisdiction as to LAW" could reasonably mean.
Nowhere have I seen this analysis of Article III language with respect to Marbury directly undertaken. I would be obliged, but amazed, if anyone here can provide a link to such substantive discussion.
In closing, reference must be made to Jefferson’s advocacy for reliance upon “originalism” as a remedy for questions of Constitutional construction. As Justice Antonin Scalia has said, “Originalism isn’t perfect. But it beats the other alternatives.”
But it is also not dispositive. It does not complete a sound legal analysis. It only appropriately begins it. Jefferson also apparently believed that hours, if not days, of colloquial oral debate of that period would somehow transcend the subsequent decades upon decades, and its full context be accurately communicated by the written transcript that recorded it. Apparently, he gave little thought to the “original intent” of legislators whose views might have been shaped by the unrecorded discussions in the cloakrooms and offices of the Capitol, and whether the full documented record would survive to the succeeding generations which might require it.
But by Jefferson’s own standards, the framer’s attitude toward judicial review was mixed. As many knowledgeable scholars favored it, as did those who were opposed. And by Jefferson’s own admission as noted above, by 1830 the consensus was that it was “settled law.”
In any event, his criticism that Marshall’s ruling was unnecessary dicta is not without foundation. A simple ruling noting a lack of the Court’s jurisdiction to issue the sought after mandamus would have been sufficient. It would also be preferable if "what the law IS" did not change with unseemly frequency or was dependent upon the judicial philosophy of the members of the Supreme Court. But the substance of Marbury remains above reproach. Though arguably premature in 1803, that substantive ruling would have ultimately proved necessary and inevitable.
And it remains so today, as is its status as “settled law.”
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